A public employee’s right to privacy was analyzed in some detail by the Pennsylvania Supreme Court in a decision entered October 18, 2016. Pa. State Educ. Ass’n v. Commonwealth. See 41 IER Cases 1310 (Pa. 2016). The Court considered the history of that state’s Right to Know Law (RTKL) as well as federal and state constitutional protections. The court’s deep dig into the privacy issues extends back to 1890 and a regularly cited law review article, Samuel D. Warren and Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890). There, Warren and Brandeis stated that all citizens have the “right to immunity of the person,” the “right to be let alone,” and the “right to one’s personality.” Sometimes referred to as the “right of informational privacy,” the Pennsylvania Supreme Court applied such a right to the home addresses of public school employees. Although the Court struggled with the argument that the RTKL changed the analysis, a majority of the Court determined that the constitutional right to privacy must be considered in any balancing of claims for public records disclosure under the RTKL. As to employee’s home addresses, the Court found no basis to overcome the constitutionally protected privacy interest.
Allegheny County, Pennsylvania contracts with hundreds of service providers. One of those contracts is with A Second Chance, Inc. (ASCI), where ASCI evaluates an individual’s qualifications to provide foster care to dependent children. A Pittsburgh television station requested that the County provide the “names, birth dates and hire dates of all employees” of ASCI who provide services to the County. Not surprisingly, the County said that those records were not available to the County and they rejected the television station’s request under the Pennsylvania Right-To-Know-Law (RTKL). Without explaining how the County should get the records, the Commonwealth Court of Pennsylvania (a court whose jurisdiction is generally limited to legal matters involving State and local governments and regulatory agencies) held that the employment records of ASCI were “public records” and accessible under the RTKL. It is unclear what process would be used under the RTKL by a local government to recover such records from a contractor.
A divided Pennsylvania Supreme Court has told the Philadelphia City Council that under Pennsylvania’s Sunshine Law, the City Council – as a whole – must allow public comment on pending legislation. [Alekseev v. City Council of City of Philadelphia, 2010 WL 4643724] The Pennsylvania Supreme Court overturned a long-standing policy in Philadelphia where Council committees, instead of the Council as a whole, scheduled and received public testimony on pending legislation. The Court found that “simply because committees fall within the definition of ‘agency’ does not mean that they may be substituted for a particular body (a board or council) accorded a specific responsibility (entertaining public commentary) by the Legislature under the Sunshine Act.”
The three dissenters on the seven-member Court found that not only that there was no doubt the General Assembly was aware of Philadelphia’s long-standing, preexisting practice of receiving public comment in special meetings conducted by Council committees, and sought to preserve it, but that testimony at the committee level was more effective. “In this case, and consistently with the practice in Philadelphia for over half a century, appellants were allowed to provide input to the committee in advance of the Council meeting at which the bill was passed, so it appears they actually had a more realistic opportunity to participate in shaping the legislation, rather than speaking at the very meeting where the vote was taken.”
A Pennsylvania appeals court recently overturned a trial court ruling that allowed the Pennsylvania Emergency Management Agency (PEMA) to withhold the complete list of the recipients of goods and services PEMA purchased with Homeland Security funds in response to a disclosure request from a Pittsburgh newspaper reporter. Bowling v. Office of Open Records, 2010 Westlaw 395637, February 5, 2010. The Court found that while disclosing the location of certain items, such as computer servers and biochemical testing equipment could be harmful to security, identifying the number and location of such items as bungee cords would not. The Court explicitly acknowledged the “enormity of the task” that individually identifying the non-sensitive items would create for PEMA, but nevertheless held that Pennsylvania’s new disclosure law required greater access to the Commonwealth’s public records.